Dish alters AutoHop amid legal battle

Tweaks could bolster satcaster's case in court

Dish Network has made a series of software upgrades to its DVRs embedded with the controversial AutoHop feature, raising speculation that the satcaster is trying to bolster its legal positioning against the broadcasters’ efforts to sue the controversial technology out of existence.

Dish has been quietly tweaking the functionality inside its multi-room DVR, dubbed the Hopper, which allows subscribers to skip over commercials in primetime broadcast series one day after being recorded on the device’s hard drive. NBC, CBS and Fox sued Dish over AutoHop shortly after its deployment in May on the grounds that it constitutes both copyright infringement and a breach of their affiliate agreements.

A spokesman for Dish confirmed software upgrades have been made to AutoHop but declined to clarify beyond describing them as serving to “enhance consumer choice.” The changes took effect sometime last week.

Sources have specified three subtle changes that were made to AutoHop since its launch:

•First, subscribers now have the ability to choose which channels to record among the Big Four networks, whereas previously they were all automatically recorded.

•Second, subs can choose to delete programming off the hard drive at a time of their choosing, as opposed to accepting a default-delete date.

•A third upgrade switches the cursor default from “yes” to “no” when presented with the option to skip ads.

While the changes may seem minor, they seem to represent a calculated strategy on Dish’s behalf to shift responsibility to viewers for the recording and ad-skipping rather than let them passively receive these features.

That fine-tuning could become noteworthy to a judge assessing the legality of AutoHop considering a similar case that has been cited as a potential precedent for Dish: Content creators sued Cablevision over its remote-storage DVR in 2006, but the 2nd Circuit Court of Appeals upheld the legality in a decision that hinged on the degree to which the viewer had control over the technology.

Of course, Cablevision prevailed in its fight to keep the RS-DVR when the Supreme Court declined to review the case; Dish still has a ways to go given a loss handed down earlier this month that prevented the company from steering the case from Los Angeles to New York courtroom. A federal judge also declined to issue a judgment declaring that AutoHop does not breach contracts with the networks or infringe on copyrights.

AutoHop is a crucial case for the broadcasters, which are leery of Dish allowing a technology that could devalue its primary revenue stream, advertising.